Subbae Gounder vs Palanathal

Ramaprasada Rao, J.—The petitioner, the husband, is canvassing in this civil revision petition the correctness or propriety of the order of the

lower Court in appointing a Commissioner ex parte under Order 39, Rule 7, C.P.C., in a maintenance action filed by the wife against him. The

respondent wife as plaintiff alleges-

Since my separate residence as aforesaid I have been demanding of my husband separate maintenance through my father and other interested

persons at the rate of Rs. 500/- per mensem, but my husband is evading to do so.

My husband is possessed of first class garden lands of an extent of 7 vallams, worth not less than Rs. 2 lakhs and yielding an annual net income of

Rs. 20,000/-.

Besides my husband is also having money dealings to the tune of not less than Rs. 1,50,000/- yielding annual interest of Rs. 18,000/-.

In order to ascertain the total value of her husband''s business activities, which according to the plaintiff are not correctly reflected in the account

books of the petitioner, the respondent sought for the appointment of a Commissioner even without notice to him to seize certain documents so

that they may not be secreted later. The lower Court appointed a Commissioner ex parte and it is reported that the Commissioner has done his

part and inventoried several valuable securities and submitted a list thereof to Court pursuant thereto. Mr. T.R. Ramachandran, for petitioner,

argues that the order of the lower Court suffers from not only a patent material irregularity, but it has been passed without jurisdiction. Mr. T.K.

Subramania Pillai appearing for the respondent argues contra.

An application under Order 39, Rule 7 is provided for in Chapter entitled ""Temporary injunctions and interlocutory Orders"" of the Civil

Procedure Code. Any order that a Court can pass under Order 39, Rule 7 is generally governed by Order 39, Rule 8, which appears to be a

supplement to the earlier rule.

Order 39, Rule 6, C.P.C., enables the Court, on an application of any party to a suit, to appoint a person to sell moveable properties which is

subject to decay and which is the subject-matter of the suit. Such person appointed is terminology called a Commissioner. Even so, Order 39,

Rule 7 inter alia provides that the Court on the application of any party to a suit has the power to authorise any person to enter upon any property

which is the subject-matter of the suit and in the possession of the other party and pass such feasible orders a3 are necessary for the detention,

preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein. Such a person

appointed is also called a Commissioner. But Order 39, Rule 8 (1) and (2) read as under:--

Application for such orders to be after notice. -- (1) An application by the plaintiff for an order under Rule 6 or rule 7 may be made after notice

to the defendant at any time after institution of the suit. (2) An application by the defendant for a like order may be made after notice to the plaintiff

at any time after appearance"".

In the fasciculus of such language and content of Order 39, Rules 6, 7 and 8 it is for consideration whether a Commissioner can be appointed

under this rule without notice to the other side. If such an appointment is made, is it without jurisdiction? This leads us to the interpretation of Order

39, Rule 8. Prima facie the language used gives a discretion to Courts to give notice to other party. The words used are ""the order may be made"".

The word ''may'' used by the Legislature in juxtaposition to the word ""shall"" adopted in the other sections, orders and rules of the CPC is significant

and indicates that the word is potential in scope and not necessarily signifying any obligation. The word is enabling and permissive. In the words of

Cotton, L. J. In in re, Baker; Nichols v. Baker, (1890) 44 Ch D 262 -

It never can mean ''must1, so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases,

where a judge has a power, and then it may be a question in what cases, where a judge has a power given him by the word ''may'', it becomes his

duty to exercise it.

The Supreme Court in Province of Bombay Vs. Kusaldas S. Advani and Others, observed-

The authorities show that in construing a power the Court will read the word ''may1 as ''must'' when the exercise of the power will be in

furtherance of the interest of a third person for securing which the power was given. Enabling words are always potential and never in themselves

significant of any obligation"".

The locus classicus on this subject are the words of Earl Cairns L.C. In Julius v. Lord Bishop of Oxford, (1880) 5 AC 214 -

But there may be something in the nature of the thing empowered to .be done, something in the object for which it is to be done, something in the

conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may

couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to, do

so.

Therefore the duty to give notice before appointment of a Commissioner is a matter within the discretion of the Court as no such duty is

compulsorily coupled with the exercise of such a right to be exercised by the Courts. If in the circumstances of a given case, the Court finds that

legal rights are in jeopardy and failure of justice is imminent if no commissioner is appointed ex parte, then the power is exercised in favour of the

applicant so that the subject-matter of the suit or as to any question which may arise therein may be preserved, detained and inspected. Mr. T.R.

Ramachandran, invites my attention to the decision in Sengotha v. Ramaswami, I.L.R.(1884) Mad 241. That case arose u/s 499, C.P. Code,

1882, which is similar to Order 39, Rule 7 of the present Code. Section 500 therein is in pari materia with Order 39, Rule 8 of the present Code.

While considering the scope of the appointment of a Commissioner before summons was served on the defendant, the Court held that ""an

application for an order u/s 499 can only be made by a plaintiff after the summons has been served and after reasonable notice of the intention to

apply for the order has been given in writing to the defendant. The term ""may"" must be read with the term ''at any time'' and does not import that it

is competent to a plaintiff to apply before service of summons or to evade the conditions of service"". The above order obviously was passed

because on the merits the application before the learned Judges was not supported by any affidavit of facts. In those circumstances, the Court was

prompted to make the above observation, I do not think that I.L.R.(1884)Mad 241 lavs down that in all cases wherein the plaintiff establishes as a

matter of fact that the appointment of a Commissioner is necessary in view of the imminent circumstances attending upon the particular case, no

Commissioner should be appointed ex parte. In fact, Gentle, J., in Chidambaram represented by his maternal grandfather Natesa Mudaliar as his

next friend Vs. Nataraja Mudaliar and Others, was of the view that an application for appointment of a Commissioner is maintainable immediately

after the filing of a petition for leave to sue in forma pauperis and before leave has been granted. Order 39, Rule 7 enables a litigant to apply for the

appointment of a Commissioner or for such other interlocutory orders in case the subject-matter of the suit has to be preserved and inspected and

for the due safeguarding of his vested rights. Order 39. Rule 8 on the other hand is supplementary to Order 39, Rule 7 in that it enables the plaintiff

or the defendant to the action to ask for the appointment of a Commissioner or for an interlocutory order even after the institution of the suit. But

once the suit has been instituted, Order 39, Rule 8 prescribes that such an order has to be made generally after notice. As pointed out in I.L.R.

(1884)Mad 241, the word ""may"" has to be read in conjunction with ""at any tune"" appearing in Order 39, Rule 8. In my view, if an application is

made by the plaintiff or the defendant for the appointment of a Commissioner after the Institution of the suit and after process for service has been

applied for and issued then there may be force in the contention of Mr. T. R. Ramachandran, on the ratio of I.L.R.(1884) Mad 241, that such

orders have to be passed after hearing the other side. But in a case where the application for appointment of a Commissioner or for the passing of

an interlocutory order is made contemporaneously with the institution of the suit, that the Court has the power under Order 39, Rule 7, to appoint a

Commissioner or to pass an interlocutory order as the case may be, if the circumstances of the case require and if for any other just and sufficient

cause it is desirable to do so.

The permissive form of the power given to Courts in Order 39, Rule 8 (1) and (2), C.P.C. Is significant. It is made optional because the

Legislature wanted to clothe Courts with jurisdiction, but it expects that it should not be lightly used and abused There may be compelling

circumstances which prompt the Court in a given case to use the power without notice to the other side. This can be done as justice should not

only be done but seem to be done and in cases where the right is coupled with a duty. I am unable therefore to agree as a principle of law that a

Commissioner under Order 39 Rules 6 and 7, C.P.C. can be appointed only after notice. Each case has to be decided on its own merits and

Courts are expected to be vigilant in conceding the request for appointment of a Commissioner, bearing in mind that it becomes a duty to so

appoint, if the exigencies of the case require. The two questions that arise for consideration are as to when a Commissioner can be appointed and

how such appointment has to be made. Both aspects have to be concurrently satisfied before a Court can exercise jurisdiction under Order 39.

Rule 7. There may be exceptional circumstances under which the Court may dispense with notice to the other side, if the sole criterion for such an

ex parte order is the preservation of rights of parties. Appointment of a Commissioner under Order 39, Rule 7, after notice as contemplated under

Order 39, Rule 8 is the normal rule. An ex parte order is no doubt an exception and Courts ,are not totally bereft of their jurisdiction to make such

an order. Ramaswami, J., in S KUPPUSWAMI Vs. COMMISSIONER OF Income Tax, MADRAS. OCTOBER 20, 1953., , while

considering the purport of Order 26, Rule 9 observed as follows-

The issue of commission can be made ex parte and in fact it stands to commonsense has often got to be made ex parte. it will be borne in mind

that this application has been filed along with the plaint and before the issue of suit summons. This application is made on account of urgency. If a

commission is not going to be issued until the defendant appears most often there will be no point in taking out a commission .........

Venkatarama, Aiyar. J., in the unreport-ed C. R. P. No. 398 of 1952 (Mad) was of the same view. In the unreported C.R.P. 627 of 1950 (Mad)

Raghava Rao, J., held a slightly different view basing his conclusion on the ratio in I.L.R.(1884) Mad 241. but it is not known as to what the facts

and circumstances in that case were. This therefore need not detain us.

In fact, a Division Bench of the Bombay High Court in Totaram Ichharam Wani Vs. Dattu Mangu Wani, , took the view that-

in cases in which it is necessary to take action promptly in order to prevent property from being made away with by the defendant, the Court

before proceeding under Order 39, Rule 7, can always appoint a receiver or grant an injunction ex parte"".

I am, therefore, unable to accept the general and unqualified contention of Mr. T. R. Ramachandran, that without notice to the other partv. the

Court cannot act and appoint a Commissioner ex parte. I do not think that the ratio in I.L.R.1884 Mad 241, supports such an extreme contention.

But in the instant case, the exercise of such permissive and enabling jurisdiction by the Court below appears to be not proper. The circumstances

as disclosed are not so grave and the incidents relied on are completely alien to the subject-matter of the suit, which aspect will be presently

adverted to. Therefore it cannot be said that in order to subserve any vested right of the applicant, the Commissioner was appointed by the lower

Court. I am of the view that the Court below, in the peculiar circumstances of the case, erred in appointing a Commissioner ex parte on this ground

alone. What the petitioner was attempting to do was to fish for information by prospecting the alleged subterranean activities of her husband. This

is a pure speculation not connected or related to the suit and not even intended to effectuate any legal right which the plaintiff is supposed to

possess.

The order of the lower Court cannot even be sustained on another ground. Mr. T.R. Ramachandran rightly contends that a Commissioner can

only be appointed for the detention, preservation or inspection of any property which is the subject-matter of the suit, or as to which any question

may arise therein and not in respect of any property which is completely allied to the subject-matter of the suit or to any such question arising

therefrom. It is not in dispute that the suit filed by the wife was only for securing maintenance of a sum of Rs. 500/- Per month as against her

husband who refused to maintain her. In fact, a charge decree has been asked for in the plaint over the Immovable properties of her husband and

not as against any other business assets of his. That this is the prayer is not in dispute. In such circumstances, what is the subject-matter of a

maintenance action as filed by the respondent in the lower Court? it cannot be said by any stretch of imagination that the business assets over

which no charge has been asked for and which has absolutely no bearing, impact or relation to the subject matter of the action, can be said to be

either related to or connected with such subject matter of the pending litigation. In the Hindu Adoptions and Maintenance Act, an inclusive

definition of ""maintenance"" is given and it runs as follows-

''maintenance'' includes in all cases, provision for food, clothing, residence, education and medical attendance and treatment.

This is primarily the subject-matter of the suit. No doubt, the respondent, in order to secure the necessary relief asked for, is seeking for a charge

decree over the Immovable property of her husband so that ultimately she could work out her rights as and when she secures a decree in her

favour. It should not however be overlooked that the subject-matter of the suit, as the plaintiff herself described, cannot be the other business

assets of her husband as she has not even asked for a charge decree over them. She has of course asked for such a decree on the Immovable

properties of her husband. Though strictly the properties described in the schedule to the plaint may not be the subject-matter of the suit as is

ordinarily understood, because of the specific prayer in the plaint that a charge decrees should be passed over such properties set out in the

schedule, it might be conceived that such properties might form part of the subject-matter of the suit. In the absence of a similar prayer in respect

of the other business assets of the husband, even this extension cannot possibly be conceived of. In my view, it cannot be said that in this action the

business assets of the husband can ever come within the scope, meaning and content of the expression ''subject-matter of the suit or as to which

any question may arise therein"", I have already expressed the view that the plaintiff was attempting to fish out information and dig at the alleged

illegal activities of her husband. She characterises such business activities of her husband as intended purely to evade tax. These allegations,

however, strong and however vituperative they may be, cannot make such business assets of the husband the subject-matter of the suit. it cannot

be said that such assets for which a Commissioner has been appointed by the lower Court have any relation to the claim for maintenance which is

the primary and only relief asked for by the respondent in the lower Court. Mr. T. K. Subramania Pillai however contends that in order to

ultimately ascertain and quantify the maintenance allowance which she may secure if she succeeds in the suit, such business assets of the husband

should be treated and deemed to be the subject-matter of the suit as well. I am unable to agree. Wanchoo, C. J., and Dave, J., in Ramswarup Vs.

Mst. Kesar and Another, took the view that Courts are not authorised to pass an order on the application of one party to make a search of the

documents which might be in the possession of the opposite party and then detain them by saying that a question might arise about them in the suit.

The Supreme Court in Padam Sen and Another Vs. The State of Uttar Pradesh, held that Order 39, Rule 7, applies only to the subject-matter of

the suit. in this case, the documents, the promissory notes and other valuable securities have been inventoried by the Commissioner pursuant to the

warrant of commission issued by the lower Court. Such an inventory obviously relates to something which does not form the subject-matter of the

suit. The lower Court therefore had no jurisdiction to issue a commission to effectuate the above purpose. The order of the lower Court is

therefore set aside and the civil revision petition is allowed with costs.